Thursday, September 29, 2005

Rack this one up to another casualty of the War on Terror. Sorry, Molokans. We've elected to crush a central religious liberty. But don't feel bad. We're doing the same to a lot of other faiths too. So at least you've got company.

I actually didn't know anything about the Molokan faith before reading this opinion; indeed, I had never even heard of them. So did a little google action, and it turns out that this is a fundamentalist sect that split from the Russian Orthodox Church in the 1550s, during the rein of Ivan the Terrible. Sounds like they had a not-great time in Tsarist Russia, and were apparently (according to Wikipedia) beat, tortured, killed, imprisoned, and exiled. Nowadays there are 200 Molokan churches, 150 of which are in Russia. And 25,000 or so Molokans in the United States. Anyway, nice to read about you, all you Molokans out there. Pleasure to meet you.

Oh, yeah. And sorry about your religious liberty. But that's what happens to "crazy" religious beliefs, don't you know. You guys ain't powerful enough to protect yourself through the political system. And weren't not that interested in protecting your nutty beliefs in the judiciary either, notwithstanding the First Amendment. So, here, Molokans -- those nutballs! -- believe pretty strongly in the Second Commandment, which (so sayeth Exodus 20:4) "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is on the earth beneath, or that is in the water below." I -- being the lapsed Catholic who didn't pay much attention in CCD that I am -- always thought that one was about "graven images"; particularly, those of God. But apparently it's about creating any likeness of anything in heaven or on earth. Which, according to the Molokans, means no pictures. Or anything. Including themselves. And, by the way, once I think about it, it seems to me they may well be right. At least from a textualist perspective. Which is a pretty interesting comment on textualism, by the way.

Thing is, though, most of us (the "sane" ones, not you sick Molokans) don't read the thing that way. And -- and this will come as a shock, I know -- our legislatie enactments generally protect only the "right" interpretation of the Bible, not your "crazy" version. So, for example, the Legislature often closes stores up and don't allow the sale of alcohol on Sundays. That's totally constitutional. 'Cause it's secular. Get it? But the crazy tenants of your absurd religion; well, you've only got 25,000 members. That ain't enough votes.

Of course, in the old days, there used to be a little something called the First Amendment. And the judiciary was pretty interested in protecting it. Including religious freedom. So, for example, in 1963, there was a guy named John Shubin who was a Molokan who, consistent with his religious faith, didn't want his picture taken for his driver's license. Now, in California, we didn't even have pictures on driver's licenses when we started issuing these things in 1944. But in 1959, we started adding them. So Shubin brings a lawsuit in 1963 alleging that compelling him to add his picture would violate the First Amendment. And he wins. So he gets a license that doesn't have his picture on it. So sayeth the California judiciary. You can put other stuff on it, of course, to identify him. But no pictures. And, even though this decision technically applies only to Shubin (since he was the only one who brought suit), it's still judicial precedent, and so the DMV -- consistent with the decision -- creates an administrative regime where it doesn't require pictures for those whose religious beliefs in this area similarly preclude pictures. Who, basically, read Exodus 20:4 -- or any other religious tract -- the same way as Shubin.

But that was all before The Towers Fell. Thanks to Shubin, Jack Valvov -- also a Molovan -- had been issued a number of previous driver's licenses without his picture. But, in 2003, when he goes to renew, the DMV tells him to forget it. He's gotta choose: Violate his religious beliefs or refuse to drive. Valvov, like Shubin before him, believes this violates the First Amendment. So sues. But now it's 2005. We've "come a long way, baby." The California Court of Appeal, in this decision by Justice Kriegler, holds that he's gotta choose, and that the DMV's practice of compelling Volvov to have his picture taken if he wants a license doesn't violate the First Amendment.

Why the change? One need go no further than Justice Kriegler's own words: "[I]t is undeniable that public safety concerns -- specifically, counter-terrorism interests -- changed drastically after September 11, 2001. Terrorist attacks after September 11, 2001 further testify to the need for such heightened saftey concerns. . . . While we are aware of some pre-9/11 decisions that found free exercise violations based on religious objections to driver's license photographs, we find them unpersuasive." It's the War on Terror, my man. Part of that means you lose your religious freedom. Nope, that doesn't play right into their hands. That's instead the American Way. Tough titties for you. I guess you gotta go back to Russia -- or some other country -- if you want to exercise your religious. Here, it's either violate the Second Commandment or ride the bus.

As you can probably tell, I'm a bit skeptical of this result. Part of Justice Kriegler's opinion results from an application of Employment Division v. Smith, a case that I pilloried even in my youth -- see, e.g., 104 Harv. L. Rev. 198 (1990) (written by yours truly) -- and that Congress had the good sense to legislatively overrule, at least in the federal context. And part is a factual reaction to the War on Terror and the perceived need to compel people like Valov to violate their religious principles so the Constitution can persist. (What?!) Like many people, I don't find either of these components particularly persuasive.

Don't think this only affects that 25,000 "crazy" Molovans, by the way. The same principle applies not only as a matter of First Amendment doctrine, but also all the other "nutty" religions that have a similarly "whacko" view of the Second Commandment (i.e., who hold a religious belief different than "ours"). As Justice Kriegler notes, the Amish, Pentacostal Christians, certain Islamic sects, and a variety of other religious groups hold a similarly demented view of what the Second Commandment and/or their God requires. Tough. The bus for all of you. P.S. - Just try to open a checking account, get on a plane, buy beer, or do just about anything else without a driver's license. Good luck. And, yeah, maybe we could solve this problem by using fingerprints or descriptions or something like that. But we don't feel like it. Tough for all of you again.

I'm not going to make any affirmative points here. I'm just going to let my sarcasm speak for itself. Sorry if that means this ain't a very intellectual post. But it's all I've got in me right now.

Wednesday, September 28, 2005

I'll freely admit that the moral issues raised by this opinion have a fair amount of depth and complexity. Moreover, these moral issues are, to me, far more interesting than the legal matters at issue in the case; indeed, the latter don't really compel any extensive commentary at all.

But read the first three pages of the opinion and see whether you'd agree whether the underlying events would impart to most observers the following lesson: "Don't lie. And, if you do, don't thereafter tell the truth and admit that you lied. Because, as a practical matter, that's almost always the worst thing that you can do."

Tuesday, September 27, 2005

I love this guy. To get a sense of how some people really do take the Compassionate Use Act seriously, read the first seven pages of this opinion. Michael Urziceanu is hardly a guy who's just passing out pot to anyone who walks into his house in order to make a profit. Look what he does with an undercover cop who comes to his house to buy some marijuana for her alleged headaches: (1) he opens up his home to help her even though he normally only processes new members on Tuesdays and Wednesdays, (2) refuses to provide her with any pot when she says that she left her doctor's certificate at home," and instead tells her to fill out the paperwork (a drug dealer with paperwork?!) and come back the next day with her certificate, (3) makes a copy of her driver's license and medical certificate for his files, (4) calls the doctor on the cop's form five times to verify that the certificate isn't a forgery and is in fact a real certificate, (5) gives her some pot in bread and a cookie for free because she says she needs 'em, and (6) sells his pot, which I imagine is pretty good, for $50 per 3.5 grams, which seems like a fairly reasonable cost (basically, $50 for an eighth (of an ounce)).

In other words, this is exactly the kind of practice that you'd want your true "Compassionate Use" guy to run. Of course, he's doing this pretty much in public, so all the police have to do to bust him is -- as they did here -- read the newspaper or search the web, make an easy undercover buy, and then go to trial. Not that the guy (Michael Urziceanu) isn't pretty cool about the whole thing; as the police are searching his house and doing an inventory of all his pot, for example, he tokes up. (Which, admittedly, I might do too -- if only to relieve stress -- if I was potentially staring at several years in the pokey.) Now, mind you, some of the stuff here strikes me as less than stellar; for example, he's also got several guns and ammo in the house. Drugs and weapons; probably not the best mix.

So what kind of person becomes a professional compassionate drug distributor, you ask? Well, at least here, interestingly enough, Michael started out working for the New Jersey Department of Corrections. But cracked three vertebrae on that job and subsequently got clipped by a drunk driver while driving his motorcycle. Not really good luck on either front, and probably caused a lot of pain. Maybe even enough to start his transition to his current occupation.

Eventually, at his trial, Michael Urziceanu gets acquitted of several offenses but convicted of several others, and he appeals. Justice Robie reverses his conviction on the conspiracy to sell marijuana count but affirms his conviction on the felon in possession of firearms and ammunition counts, the former on the ground that the Medical Marijuana Program Act applies retroactively. So a retrial on that count.

Monday, September 26, 2005

Damn spellcheckers! Why can we send a man to the moon (or at least used to be able to!) but can't figure out how to program our computer to correct our embarrassing errors? Resulting, to take but one example, in this order, in which Justice Turner amends his original opinion to change the line "claims bought by entities" to "claims brought by entities" and the words "alleged contract" to "alleged conduct". In other words, to correct the errors that only a human could catch. If only such a human would bother to read the thing one last time before it was published in the Official Reporter.

Let's just be glad for what we have, shall we? Even when you hit the bong hard, in our Great State, you can't be thrown in the state clink for it, at least as long as you've got a doctor to back you up. That's the Compassionate Use Act of 1996. Or at least my rough vernacular description of it.

But that doesn't mean you can't be fired for toking up. It's not the Bring Your Bong To Work Act. Nor is it a "Feel Free to Fail the Drug Test" card. Look, it's not that there isn't a reasonable argument to the contrary; after all, if you can't be fired for taking prescription drugs (and you can't), why should you be allowed to be fired for taking your prescription pot? Good argument. But not every good argument is good enough. And the dispositive difference here is that mary jane isn't a prescription drug and is still illegal under federal law. Which doesn't escape Justice Scotland, who affirms a demurrer granted against a dude who was fired when his drug test came back positive.

Sorry, my man. The CUA just keeps you out of lockup. Doesn't keep you in your job.

Friday, September 23, 2005

Don't know where I come out on this one. It's a toughie, and a multifaceted toughie, at that.

At issue is whether a party can represent himself at conservatorship proceedings; in other words, whether a person who is alleged to be incompetent can represent himself in an adjudication whose target is to take away that person's ability to control the vast majority of his own affairs. There, in my mind, strong arguments on both sides of that question. And, unfortunately, I don't think that the opinion by Justice Butz does a good job of addressing -- or even articulating -- those arguments. It's a pretty poor opinion on a very important topic. (And I say that with all due respect, having very much complimented Justice Butz -- here and here -- on both of the prior opinions of hers about which I've posted.)

The arguments both ways, in my mind, largely mirror the (hotly-contested) contemporary issues regarding whether someone can represent themselves at a criminal trial. Arguments in favor of "Yes": It's their life. It's their liberty at stake. They have a right to participate, and also to control their own destiny. Sometimes they may even be better than a professional attorney. Other times the actual outcome is largely preordained, and hence the value of participation deemed to outweigh the potentially adverse consequences. Automomy is good, and maybe even a right. Arguments in favor of "No": It's too important, both for the individual and society. They're not as good as a professional, and may even be incompetent (especially here). Paternalism is good. Can't risk it.

In the criminal arena, we've basically held that the "Yes" arguments prevail. That's probably the strongest argument in favor of a right to self-representation here. Because what's at stake in conservatorship actions (essentially, continuing liberty) is very similar to what's a stake in a criminal action; indeed, in many cases, an involuntary conservatorship would be much more of a deprivation than, say, the imposition of probation in a criminal proceeding. Justice Butz spends a lot of time on the analogy, but essentially just lists all the various cases and situations, and doesn't do much analytical work at all about what (if anything) rightly distinguishes the various settings. For a case that's basically one of first impression, that's very much not the way to go.

Perhaps Justice Butz, in the end, reaches the correct result. I'm not sure. But I am pretty positive that I don't like the superficial way in which she gets there, and that this process also makes me extremely unconfident in the outcome she reaches. Plus, can't we be a bit more creative here? For example, it seems to me, even upon a superficial glance, that there's a huge risk that the proposed conservatee is indeed incompetent; indeed, that this is the whole point of the proceeding, and -- as here -- the record may already provide a fertile basis upon which to make such a potential finding. If the record does, indeed, demonstrate such a basis, why not use that fact as a basis to find no right to self-representation, as (I think) incompetents don't have a right to self-representation even in a criminal case. But, if no such record exists, why presume that every defendant in a conservatorship proceeding is incompetent and deny them all the right to self-representation on that basis? Let's say that my wife, out of spite (or otherwise), initiates conservatorship proceedings over me. Do I -- a reasonably bright and, I'm pretty sure, not incompetent dude -- really have to turn my entire life over to the skills of a counsel who's appointed by state, whom I may not trust, and who may be much worse than I am? It would seem to me that I have the right to represent myself in such a setting. Sure, everyone else may not be me. But a conclusive holding like the one articulated by Justice Butz here nonetheless seems the wrong way to go.

So maybe I think that, even if the result reached by Justice Butz may be correct in many cases, her approach still articulates the wrong rule. At least that's my thought right now. Who knows; in 10 seconds, I may change my mind again. But, regardless, there's a lot more here that's worthy of discussion. And I wish that Justice Butz had taken the time to do so.

Thursday, September 22, 2005

You'll be hard pressed to find someone who's as much of an advocate for law in the public interest as me. I'm a huge fan. Indeed, one of the (many) great things about my academic gig is that it allows me plenty of time and opportunity to do whatever work I feel might make the world a more just place. Practicing law is an awesome profession. At least when you don't have to do it for a living.

All of this is a means of introduction to my comments on this case and one of its participants, attorney Scott Rafferty. The case was brought by the Santa Clara Democratic Central Committee against the Department of Veterans' Affairs challenging the VA's policy of kicking out anyone who tries to register voters (or conduct any other "partisan activity") at a VA facility. Because we definitely don't want anyone helping veterans to register to vote. What a nightmare that would be. Thanks, VA, for helping to avoid such an obvious debacle.

Anyway, I'm pretty sympathetic to the constitutional merits of the plaintiffs' position here, although it looks like they make at least one pretty critical tactical mistake (see, e.g., footnote 5 of the opinion) that might have worked to their detriment. In the end, Judge Graber holds that plaintiffs are unlikely to prevail on the merits and hence that the district court didn't abuse its discretion to deny a preliminary injunction. This seems to me a plausible (though by no means self-evident) holding, particularly given the substantive content of the VA's regulations, which do allow at least some ("nonpartisan") registration activities at VA facilities.

But I wanted to add one nonsubstantive point as well, and that's about the conduct of counsel who work in the public interest. Here's my take-away message: You gotta be cool.

Lots of attorneys are jerks. That's just the way it is. People often get into this profession because they can't (or won't) control their hormones, and so think work out their aggression by ceaselessly and needlessly "fighting" all day, every day. Sure, being a jerk typically harms, rather than helps, their clients (though hypercombative lawyers almost always convince themselves that the converse is true). But it's fun for such desperately-needs-a-better-outlet individuals. And that's all that matters.

But that's not all that matters when you're working for the public interest. When you do that, even if you're ordinarily a jerk, you've got to take things down a notch. Because your personality definitely shouldn't get in the way of your substantive objectives.

I say that in connection with this case because a tiny portion of it brought that topic to the front of my brain. As Justice Graber's opinion notes, the case started when an attorney named Scott Rafferty -- a young lawyer and recent graduate of Yale Law School -- made several visits to the VA facility to try to register voters. Now, I'm totally all for that. Great job, Scott. But here's the part (as Judge Graber describes it) that's not so great: "The April 2004 visit was not Rafferty's first. On earlier occasions, he had tried to register voters but had been denied access by VA employees. Rafferty had apparently been disruptive and confrontational with VA staff when he was told that he could not register voters on the premises." Due to this prior conduct, even after the VA subsequently gave permission to register veterans on the premises, when Rafferty came back, "a VA employee recognized Rafferty and told the group to leave. "

So two things. First, notice that being a classic, hypercombative lawyer caused Rafferty to get kicked out of the facility -- thus frustrating his central public purpose -- even after the VA had (temporarily, at least) joined his side. Second, this conduct, which is described in the opening paragraphs of Judge Graber's opinion, can't help his case, and instead provides both color and substantive content that probably helps to lead the panel to the conclusion that the VA's policies are constitutional since they advance the goal of stopping disruption in the facility.

Full disclosure: I happen to know Scott. I don't know him personally (or well), but he intervened in a public interest case that my wife and I brought (and, I might add -- proudly -- won) in connection with the recall of Governor Davis: Partnoy v. Shelley. He was a pain in the butt, but was always polite. A bit too interested, I thought, in interjecting himself in a lawsuit which -- by the time he intervened -- we had already won. And, as the court (rightly, in my view) held, he was largely raising claims that were either late, meritless, or both. But, besides being a bit of a pain in my ass -- as we had to write brief after brief dealing with the guy -- I thought his heart was in the (sort of) right place. He wanted to do public interest work. More power to him.

But do it mellowly, my man. Don't get so caught up in the "fight" that you end up being a jerk. A modest and mellow attorney who lets his or her work and arguments do the talking is better than a hyperaggressive jerk who screams and shouts. Particularly in public interest cases. That's my perspective, anyway.

Wednesday, September 21, 2005

Here's something that you definitely don't see every day: A state prisoner winning an Ex Post Facto Clause claim in a post-AEDPA federal habeas case. Just doesn't happen much.

That said, I think that Judge Tashima's opinion is spot on. And relatively brief, to boot. When a statute that says that the penalty for Crime X can be either A or B, at the judge's discretion, is amended to declare that the penalty must now be B (rather than the lesser A), applying the amended statute to Defendant for a crime that transpired prior to the statutory amendment violates the Ex Post Facto Clause. (That sentence, by the way, was even briefer than Judge Tashima's nine-page opinion.) Sounds right to me. Just like when a statute that says that the penalty for Crime X must be A is amended to say that the penalty must now be B (= A + 5 years). The state can't sentence Defendant to B if the crime was committed before the statutory amendment. Same result.

What's perhaps most troubling about this opinion is not the result it reaches -- which seems entirely right -- but rather the treatment of this claim prior to it getting before the Ninth Circuit. Williams made this same argument in the California state system on habeas, only to get it repeatedly and uniformly slapped down, in the superior court, the Court of Appeal, and in the California Supreme Court. And, on federal habeas, he got the same treatment in the district court as well (before Judge Real): Denied.

This doesn't exactly say very nice things about the "careful" treatment of habeas petitions, particularly in the state system. Rather, the sense you get is that it's often just a rush to see how quickly the state court (or, in at least some cases, the federal district court) can get these "frivolous" petitions denied. And one might perhaps be inclined to think that the stark contrast between the result in the state habeas system (routine denial, often without any substantive comment whatsoever) and the result here is only because the stinking "liberal" Ninth Circuit went out of its way to grant relief. But such an explanation (1) is not particularly plausible on the merits, since I think the panel -- which admittedly is pretty leftie (Pregerson, Tashima, and Paez) -- reaches the right result, even after applying the super-strict substantive standards applicable to post-AEDPA federal habeas petitions (which did not apply in the state habeas proceedings, which should have made the state court much more willing to grant relief than the Ninth Circuit), and (2) doesn't take into account that, as footnote 1 of Judge Tashima's opinion references, the State basically admitted that there was an ex post facto violation here. Why exactly does it take four rounds of state and district court habeas proceedings in order to finally find a violation that the state essentially concedes? Why are these judges seemingly blind to a violation that (1) even the state itself can't plausibly defend, and (2) is an "obvious" violation of "controlling precedent" of the "United States Supreme Court" under AEDPA?

The correct answer to these questions probably speaks volumes about how habeas petitions are routinely treated in lower courts. Sure, there are a ton of them, and they're often a pain in the butt (if for no other reason than the fact that we don't provide counsel in habeas proceedings means that these petitions are typically filed pro se).

Still, they're important. People's fundamental person liberty is at stake. You've got to take them seriously. And get 'em right. Particularly in fairly obvious cases such as these.

There's no excuse for this one to have taken as long as it has to reach the right result.

Tuesday, September 20, 2005

I'm not going to complain about the panel's opinion, which I think rightly affirms the conviction here. (Though the Crawford/confrontation issue about the testimonial nature of a "no records" declaration is one about which I think reasonable minds could definitely disagree).

There are a variety of alternative ways to view the underlying events of the case. Which are these. In 1998, Roberto Cervantes-Flores is found in the United States and convicted of improper entry by an alien and sentenced to 4 years in prison. After he's served his time, in January 2003, he's deported from Hidalgo, Texas. One week later, a border patrol agent catches him in the United States again, this time in Tecate, California. He's then convicted (again) and, this time, sentenced to 8 years in prison. So, in essence, Cervantes-Flores will spend 12 years in prison in the United States for entering this country illegally.

Which of the following is the best caption for this factual summary:A. "The Price of Secure Borders"B. "Our Tax Dollars Hard at Work"C. "Oh, The Humanity"D. "Better Him Than Me"

This question is not likely to be on the SAT anytime soon. But it's an informative one.

Monday, September 19, 2005

Rarely have I seen as one-sided a crush as in this case. The majority -- led by Judge Bright of the Eighth Circuit (alongside Judge Tashima) -- just pounds our own Judge Callahan in dissent. Judge Callahan needs to do more than just include in her dissent all the possible arguments that one might make to support her desired result (here, affirming the conviction). She actually has to persuade. And, on this front, there's no contest. Judge Bright's opinion crushes Judge Callahan's.

You gotta support the home team, Judge Callahan. If ever there's a need to write a good opinion, it's when you're opposing someone sitting by designation. Particularly when the judge is from another circuit.

You learn something new every day. Before reading this opinion, I didn't know the story about O.J. Simpson's house, or that O.J. took out a loan from Hawthorne to cover his litigation costs, that O.J. defaulted on the loan (what a shock!), that a variety of possible buyers emerged (including a leading candidate who was going to use a loan from Hawthorne to buy the house) at the trustee sale, that Hawthorne decided to itself bid against these buyers at the sale (and won!), and that it subsequently sold the house for a neat $1.2 million profit. At least that was its profit before the slew of subsequent lawsuits, of course, including this insurance coverage dispute.

If you're interested in the story beyond my one-sentence description of it, read the first three pages of Judge Berzon's opinion. Pretty brief. Whereas, if you're keenly interested in the fascinating issues surrounding precisely how federal Burford absention principles interact with the McCarran-Ferguson Act as applied to particular insolvent insurers, as well as other equally enthralling issues, read the subsequent 34 pages as well.

Friday, September 16, 2005

There's nothing good about this one, whomever one believes. Here's the first several paragraphs of the facts, which I've briefly edited (and inserted fictitious names instead of initials):

Father and Todd’s mother (Mother) were living together in September 2004 when both were incarcerated on criminal charges of child cruelty involving Mother's two older children, Nancy (born in Nov. 1995) and Robert (born in Feb. 2000) . . . . Nancy told a social worker that she had been sexually abused on an ongoing basis by the maternal grandmother, who was babysitting the children while Mother worked. Nancy was diagnosed with genital warts and said that the maternal grandmother would invite male friends to have sex with Nancy. In July 2004, Mother told the social worker that the maternal grandmother had similarly sexually exploited her when she was a child. Both Mother and Nancy told the social worker that Nancy had oral sex with her younger brother, Robert.

Both children were extremely emotionally fragile, with Nancy expressing suicidal thoughts and Robert suffering from nightmares and post-traumatic stress disorder. In August 2004, Mother denied that Nancy was sexually abused and told an investigator that Nancy might have gotten genital warts at the hospital. In October 2004, Mother denied sexual abuse by the maternal grandmother and told the social worker that she and Nancy did not tell the truth about the maternal grandmother because her boyfriend, Father, had abused and intimidated them and threatened to beat Mother if she did not make the statements about the maternal grandmother. . . .

Nancy and Robert were declared dependents under section 300, subdivisions (b) (failure to protect), (c) (serious emotional harm), (d) (sexual abuse), (i) (cruelty), and (j) (abuse of sibling) based on findings that Mother neglected them and failed to protect Nancy from sexual exploitation by the maternal grandmother and from physical abuse by Father. . . . The sustained petition alleged that Father struck, bruised, and scarred Nancy’s body with an extension cord, pulled some of Nancy’s hair from her head, struck her in the face causing black eyes, stomped on and broke her shoulder, and forced her to drink Robert’s urine.

In early March 2005, Mother gave birth to Todd in jail. . . . . On May 10, 2005, the juvenile court sustained a petition finding that Todd was a dependent under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling) based on the same underlying allegations of abuse which had been sustained as to Todd’s siblings, and on the allegations that Todd’s siblings were dependents of the juvenile court and that Mother failed to reunify with the siblings. According to DCFS's jurisdictional and dispositional report, Father acknowledged to a social worker that he had physically abused Nancy and Robert, admitting that he hit them with a VCR cord, belt, and his hand, and that he slapped Nancy, resulting in a black eye. Father denied knowing about the sexual abuse, but admitted that he observed Nancy orally copulate Robert on numerous occasions. He also denied making Nancy drink Robert’s urine but did admit that he threatened it after witnessing Nancy orally copulate Robert. According to the report, Father "told Nancy not to do it because Robert had not taken a bath all day, not because it was an inappropriate thing to do."

At a contested dispositional hearing on May 17, 2005, Mother's therapist testified that Mother told her that Mother believed that Mother's boyfriend molested her daughter and that he hit the two older children. Mother testified that she was lying when she told the social worker that the maternal grandmother molested her when she was a child. Mother said that she made the statements about the maternal grandmother and caused N.L. to make statements about the maternal grandmother because Father was beating her, threatening her, and threatening to kill her children.

Thursday, September 15, 2005

Hartline sues Kaiser. Kaiser obtains summary adjudication of Hartline's first cause of action against it, which leaves only a (meritless) cause of action for premises liability against Kaiser. Kaiser then sends a 998 offer to Hartline which offers to waive costs in return for a "Request for Dismissal with prejudice." Hartline doesn't accept the offer, and when Kaiser thereafter prevails, it seeks to recover expert witness costs incurred after the 998 offer. The trial court awards 'em, and the Court of Appeal affirms.

The problem is that I think that Hartline is right that the 998 offer submitted by Kaiser required Hartline to waive its rights to appeal the summary adjudication of the first cause of action, and hence that the offer was not in good faith. Justice Cantil-Sakauye responds only that nothing in the 998 offer said anything about waiving appeal rights. But I think that this is precisely what an unvarnished Request for Dismissal does; or, at a very minimum, a reasonable party could so assume. Moreover, Justice Cantil-Sakauye asserts that if this is what Hartline thought the 998 offer meant, they could have made a counteroffer that agreed to dismiss the remaining cause of action in return for a waiver but preserve their right to appeal. But, first, nothing in 998 requires you to counter (or clarify) an ambiguous offer. And, second, and perhaps more critically, this is what Hartline basically did anyway. The day after the 998 offer, Hartline offers to dismiss the remaining cause of action so that they can appeal the first. That's exactly what the 998 offer purports to do as well.

Justice Cantil-Sakauye notes this fact (albeit in a footnote), but responds only that this wasn't an actual "counteroffer" since Hartline probably hadn't received the 998 offer yet. But so what? There's nothing in 998 that requires a counteroffer anyway. Moreover, what's important about this offer is that Hartline made it, which pretty much conclusively shows that they would have accepted a 998 offer that dismissed the second cause of action in return for a cost waiver that allowed Hartline to appeal summary adjudication of the first cause of action. And what's dispositive is that it shows that Kaiser was not willing to accept such an offer, since -- after all -- they didn't, and instead refused to sign the stipulation that Hartline proposed. Which is darn good evidence that their 998 offer did not intend to allow Hartline to appeal the summary adjudication order since, when Hartline expressly made such an offer, Kaiser refused to accept it. (Plus, this evidence is even stronger, since Hartline's offer -- unlike Kaiser's -- made no mention of costs. So the Court of Appeal's view that Kaiser was proposing to waive costs and allow Hartline to appeal the first cause of action seems flatly inconsistent with the undisputed fact that they were unwilling to allow Hartline to appeal the first cause of action even without a waiver of costs!)

This is the first opinion that I recall reading from Justice Cantil-Sakauye, who joined the Court of Appeal earlier this year. She's a former D.A. and was the youngest appointed judge in California (appointed as a Municipal Court Judge when she was 31). I'm sure her stronger suit is in the criminal area rather than in civil cases. But I'd have preferred to read a more impressive -- or at least persuasive -- start by her as her first published opinion on Court of Appeal.

Wednesday, September 14, 2005

Whoopsies. We were talking in my Pretrial Practice class a week or so ago about various ways that lawyers can make a fatal mistake and thereby waive an objection to personal jurisdiction. And, contemporaneously, along comes this case.

Two lessons. First, don't request discovery in order to oppose a request for a preliminary injunction. At least if you want to preserve your objection to personal jurisdiction in California state court. Justice Spencer holds that the discovery request constitutes a general appearance, and thereby precludes a motion to quash. This is a hard lesson learned by counsel for the defendant here, who are represented by Scott Sirlin (of Gordon & Rees) and Anthony Paduano. Ouch.

Tuesday, September 13, 2005

Gotta love the caption on this one. Made me want to find out just how many California appellate opinions are named "People v. Love". 'Cause we're California, after all. We should be in favor of love. Not agin' it.

The answer: 32. This one is the latest one: against Latasha Renee Love, for receiving stolen property and failure to appear. Stolen love, no doubt. The earliest People of the State of California v. Love? For that, you'll have to go back to the California Supreme Court's opinion in People v. Love, 19 Cal. 676 (1862). During the Civil War. About a decade after California joined the United States. A bail forfeiture case. When the aptly-named Samuel Love put up $1000 to bail out his friend George Dodge. For larceny. Which was then forfeited by -- you guessed it -- Dodge's failure to appear.

So a theft and a subsequent failure to appear. 143 years apart. And both named People v. Love.

Monday, September 12, 2005

Shucks. I always like to read about a good fight. So I was bummed that Justice Epstein's opinion didn't contain more of the underlying facts in this case. Sure, they were utterly irrelevant to the merits of the appeal. But when the opinion describes the underlying divorce litigation as "unusually litigious even for its genre" (and involving multiple appeals and petitions), you know you're missing out on some good stuff.

The first three pages of this case -- which recite the facts -- demonstrate one downside of the Three Strikes Laws. Namely, that once the jury says "Guilty", all bets are off, and at that point, there's really very little reason for the defendant to refrain from throwing a chair at the bailiff and beating the prosecutor senseless. And, at a subsquent hearing on those new charges, from flipping off the prosecutor and telling him: "You are a dead man. I promise you that. You are fucking dead. You are going to burn in hell, bitch." All of which Juan Medina does here.

The prosecutor who gets beaten, by the way (plus called a "bitch"), is Erwin Petilos. Who has the joy of watching Medina sentenced to 90+ years. But who nonetheless still feels the need to buy a gun and get a carry permit after the attack.

Friday, September 09, 2005

I guess I agree with the unanimous California Supreme Court in this case that there doesn't seem to be any reversible error. And if it's a California Supreme Court case and it's a unanimous affirmance, you know that it's probably a death penalty case. And if the opinion is 71 pages, which indeed it is here, then you're pretty much sure of it. Which, indeed, is true. It's a death penalty case. And that's Glen Cornwell's sentence. Add another unanimous California Supreme Court affirmance to the pile.

Again, I don't know that I disagree with anything the Court says. Though, notwithstanding the absence of reversible error, are we really sure that Glen Cornwell is guilty? It's a "murder during a robbery" case. There's relatively scant evidence against the defendant. There are nine eyewitnesses to the crime. Five of them say that Cornwell was the perpetrator. But four of them say otherwise, including several witnesses 2-4 feet away from the murder who positively identify a particular other person as the murderer. (Plus Cornwell's got at least an alleged alibi.) And Cornwell is hardly your typical death penalty defendant anyway; some robbery priors, but no real violent offenses. Ever. And good in prison. With nothing really at all in aggravation.

With all this -- especially the lingering doubt about whether Cornwell is even guilty in the first place -- why exactly are we particularly excited to sentence this guy to death? Isn't there at least a fair risk here that the four eyewitnesses are right and Cornwell didn't do it? Do we really want to whack him and find out that we've killed an innocent man? By the way, his first jury deadlocked on the guilt phase. So you can't even say that "all the jurors thought he was guilty, so who are we to say there's lingering doubt?" There's doubt because there's doubt. Sure, maybe he did it. Maybe he didn't. And, notwithstanding the absence of reversible error, I'm a little concerned about that. Who shouldn't be?

Thursday, September 08, 2005

Ewwww! For a creepy, skin-crawling feeling, take a gander at the e-mails and IMs that George Terry -- a married man in his 30s -- sent to a 16-year old girl. They're on pages five, six and seven of this opinion. Ironically, the fact that George Terry doesn't seem a classic predator -- and instead appears to be a kind of particularly pathetic, love-stuck loser -- only makes the whole thing even creepier to me. Reading that stuff just made me cringe. Eeee.

Anyway, in this 44-page opinion, Justice Sims affirms the granting of an anti-SLAPP motion against Terry's defamation lawsuit against the church and various individuals who allegedly libeled him. Not too shocking. For reasons you might well imagine, Terry doesn't exactly come across as a person you really want to favor with a judgment. (Even though, quite frankly, there are apparently some qualities about him that I somewhat appreciated; in particular, the fact that he did seem to have some real sense -- at least eventually -- that what he did was totally wrong and inappropriate). So it's not too surprising that Justice Sims (and the trial court) dismiss his lawsuit. And award attorney's fees to the other side.

That said, my firm sense is that, at least in places, Justice Sims is simply trying to hard to achieve this result. Let me give just one example. Terry has sued for a ton of different allegedly defamatory statements, and on page 31, Justice Sims discusses one of them: Terry's allegation that defendant Tobin called him a "liar"; in particular, that Tobin told at least person that Terry had lied to her about the relationship that he had with the young girl. Well, if true, that seems pretty defamatory to me. And isn't a protected statement of opinion. So it seems like that's a potentially cognizable claim.

But Justice Sims nonetheless dismisses this claim on the grounds that "Terry admitted lying," and hence that defendant's statement is indisputably true. How so, you ask? Because, Justice Sims says, it is undisputed (as indeed it is) that Terry wrote an e-mail to the girl in which he said "I feel dishonest . . . like I'm hiding something (which I know I am)" and asked her to help him act "normal" around him.

Uh, dude. These are two different things. Sure, Terry's saying that -- as in may secret relationships -- he's being emotionally "dishonest" by not revealing his feelings to the world; e.g., by (not surprisingly) refraining from kissing his 16-year old love interest in public like he might want to. But that's hardly an admission that he lied to Tobin about his relationship with the girl. Terry says he never lied to Tobin, but that Tobin accused him of doing so. If so, that's defamation. The fact that you're -- as we sometimes put it colloquially -- "living a lie" hardly means (even if it's true) that everyone's privileged to call you a big fat liar. You're only a liar if you lie. Not revealing your feeling (or sexuality, or political beliefs, or whatever) doesn't count, nor does it give carte blanche to people to call you a liar.

Not, mind you, that stuff like this actually matters to the result, because I think that Justice Sims may well be right when he holds -- later on -- that, even if actionably defamatory, these allegations are privileged under Civil Code 47 by the common interest privilege. The point is nonetheless that judges shouldn't stretch just to achieve a particular result. Because it weakens the opinion. And also isn't what judges are supposed to do. Just tell it like it is and let the chips fall where they may. Let's not stretch the law (or facts), like I think Judge Sims does on occasion here, to reach a particular result. Either consciously or -- as may well be the case here -- subconsciously. Just play it straight up. And try hard to put your prejudices aside. That'll make everyone better off.

This is a good, well-written, and balanced opinion by Justice Rubin. He repeatedly -- but rightly -- critiques both defense counsel and the prosecutor below for their conduct during the trial. And says the same, albeit gently, about some of the tangential conduct of the trial court judge (Judge Sheldon) and defendant's appellate counsel (Lynette Moore).

Wednesday, September 07, 2005

It's fairly rare for the California Supreme Court to order publication of an opinion of the Court of Appeal. As we all know, its orders typically go the other way: depublication. So when it orders an opinion published, I generally stand up and take notice.

And this one doesn't disappoint. Justice Reardon's opinion was indeed worthy of publication. It concerns an important and relatively pervasive practice: the delay of 12-month review hearings (in child guardianship cases) until the mandatory 18-month review deadline, as well as the associated change in the substantive and procedural standards applicable to that hearing. So it is an important issue. Moreover, it also expressed the Court of Appeal's critical view of another pervasive -- and deleterious -- practice in such cases: the reading by counsel of what a witness "would" say at a hearing, followed by the "adoption" of that summary by the witness ("Yep, that's what I'd say."), in lieu of actual testimony. Justice Reardon criticizes this allegedly "economical" practice -- which is fairly common in these types of cases -- as improper both as a matter of doctrine and as a means of getting to the truth. His opinion on this point is an independent reason for publication. Plus, I must say, the opinion is both well-written and cogently reasoned throughout. Definitely a valuable addition to the list of published opinions by the Court of Appeal.

So I was glad to see the California Supreme Court step in on this one and order publication. Indeed, my only critique of Justice Reardon -- who I don't believe I've ever heretofore discussed in this blog -- is that he needs to be less modest. If he's regularly leaving decisions like these unpublished, he needs to rethink his practice. We'd all benefit from more precedent like this, not less. So publish, publish, publish.

P.S. - The underlying facts of the case are also worth reading, though heartbreaking. Denny is the father of two girls, Jennifer (12) and Amanda (10). The girls were taken from their mother (presumably for good reasons) when they were 3 and 1, respectively, and placed with their father a couple of years later. The family then moved around a lot, eventually ending up in San Francisco, where the father was eventually arrested for public intoxication and the girls taken into protective custody. Because, the police report says, the father begged the officers to take them, saying that he was tired of caring for them. And the girls were dirty, smelled of urine, had not attended schools for months, and thought that all of this was their fault. The kind of stuff that makes you grimace at the occasional horror of being a child.

But there's stuff on the other side too. After the girls are taken away, the father makes real efforts to get things together, visits his daughters in Oregon, and really does seem to have an attachment to them. But the father is still an alcoholic, and homeless. With all the resulting complexities and impact on his children. So what is one to do? Let him have custody? Take away his kids forever? Keep the case in limbo? There's no real solution to the problem. None of the options really make me happy, nor do any of them make me at all confident that the children will receive the love and caring and attention that every child deserves. Another heartbreaking set of underlying facts, alongside the continuing problem of many cases in this area.

Tuesday, September 06, 2005

Oops. Particularly when you publish an opinion, double-check to make sure that you didn't get the parties confused when you issued the judgment. Otherwise you'll have to do what Justice Sills does here: amend his prior opinion to award costs to the appellant (who won) rather than the respondents (who lost).

Just a reminder that a little proofreading goes a long way. (Of course, I say this notwithstanding the plethora of typos, spelling errors, and grammatical flaws that exist throughout this blog. My only defense is that I don't particularly care, since nothing in the blog -- unlike in a judicial opinion -- actually matters to anyone. Except for any loyal readers, of course. Who are probably immune at this point. Hopefully, anyway.)

You know you gotta read the rest of the opinion -- if only for the facts -- when the opening paragraph is this: "This case presents the issue of whether a judicial officer enjoys absolute immunity from civil liability for assaulting and battering a litigant."

The "judicial officer" here is actually a discovery referee, Roseville attorney David L. Price. According to the plaintiff, Price is a hothead who allegedly slammed a door into a frail, 63-year old litigant. Now, mind you, the facts recited by the Court of Appeal all come from the complaint, to which a successful demurrer was filed. So don't necessarily believe everything you read. That said, even from the complaint (and resulting litigation), one gets the keen sense that Mr. Price and plaintiff's counsel, Robert Kingslan, had a contentious relationship.

Anyway, so it's not like a judge beat the plaintiff senseless or anything. But Justice Butz still has to decide whether the discovery referee here is indeed absolutely immune. And decides -- sensibly, in my view -- that the referee is not. That assaulting a litigant isn't anything near a judicial act and hence immunity doesn't lie.

Admittedly, this holding requires a fair amount of dancing, and distinguishing a plethora of other cases. But Justice Butz does it well, and the distinctions that she draws make sense to me. This is a good example of an opinion that takes a limited group of cases and derives a rational and coherent doctrine therefrom, and one that is dispositive of the case at hand. It's a nice, short (dozen pages) piece of legal reasoning.

Plus, it's always fun to read about counsel who want to beat each other senseless. And, sometimes, the judge too.

P.S. - Don't know exactly what to make of Mr. Price. Again, everything I know about the case comes from the Court of Appeal, and it reaches that court on a demurrer, so who knows what the full truth is. But interesting that he's general counsel to the Sacramento Kings (and the WNBA's Sacramento Monarchs), as well as a former adjunct at Davis. With no former disciplinary record (unlear if he'll get one from this). Definitely was a nasty litigation, though. That much is clear.

Friday, September 02, 2005

I talk to reporters. I know, I know. By definition, that means I'm a vainglorious, egocentric whore. Who likes to see his name in print because that way he feels important. Because that's why people talk to reporters.

I understand that critique. And take at least some of it to heart. But, in my defense, I actually like talking to reporters. Who, in all honesty, are -- as a general matter -- much smarter and more well-informed than I would have previously thought. Often times, they know a whole lot more about a particular topic than I do, even though I'm the one who ends up being quoted. So I've been (again, in general) pretty darn impressed by what I've seen in the several years in which I've interacted fairly extensively with the press. Plus, as a final defense (I know: I'm a bit defensive about this stuff), I don't actually read most any of the stuff I'm quoted in that much anymore. Was interesting at first (ditto for television). Now it's just a job.

I say all this because today is the first day I actually have gotten something as a result from talking to a reporter. And it's a big benefit. Namely: The ability to be lazy. One of my favorites. Because, since I already talked to a reporter (Douglas Sherwin of the San Diego Daily Transcript) about Justice Rubin's holding in this case, I don't have to actually spell out my thoughts. I can just cut and paste the link to his article. Yippee!

Of course, my thoughts on the subject are in substantially more detail than are expressed in the article, which is all about Justice Rubin's basic holding that a lawyer can unethically violate her sworn duties and rat out her client to the police without that deliberate breach of confidence being excluded at trial. As you'll see, I'm not a big fan of this rule. For lots of different reasons.

P.S. - As you'll see on the link, the relevant deputy district attorney, Patrick Moran, told the reporter (as well as the Court of Appeal) that this holding was proper because the police officers "just received this information" and "didn't seek it out." Right. That's why they had -- by their own account -- 10 to 40 separate telephone conversations with the lawyer. That wasn't debriefing her. That was just listening. Even in the ones where the police initiated the call. The police didn't really "participate" in any of those conversations at all. They were just passive recipients. Really. Entirely passive. Yep.

Thursday, September 01, 2005

Thank goodness Justice McDonald elected to publish this opinion, albeit belatedly. Because I think that the decision of the lower court -- down here in San Diego -- was absolutely outrageous. Or at least that's my very definite impression.

Here's the deal. Mom and Dad are drinking. As parents sometimes do. Not a ton, but a bit. They go to the store to buy some diapers, milk, and beer. The latter for themselves, the former for their 19-month old twin girls, Sierra and Savannah. They don't abandon the kids. Rather, they leave them with a family friend, David, who is 60 years old, who's raised seven kids of his own, and who they've known for two years. Seems fine.

They come back from the store and see that David's changing Savannah's diaper. Which is strange because they had just changed her diaper, and David had also previously said that he didn't like changing diapers. So that's a bit weird. But rather than just overlook the matter, or simply assume that everything's okay, they confront the dude, and ask David straight out whether he's doing anything wrong, and he replies that he's totally not, and who swears that he'd never do anything like that. As a result, Mom's still a bit worried about David's trustworthiness, but Dad's not: he's convinced that David really was just changing a diaper.

Consistent with Dad's impression, later that evening, Dad and Mom again leave the kids with David while they go to the store, this time for cigarettes. They're only gone for 20 or 30 minutes. But this time, when they come back, David's indisputably molesting Savannah, telling her to "Suck this". At which point they -- not surprisingly -- totally freak. And, of course, call the cops, who arrest David.

So what happens at this point? Is this a case about David's conviction? Nope. Justice McDonald doesn't tell us what happens to him. What he does tell us, however, is that based upon their call, the police immediately take Savannah and Sierra from their parents. That their kids are then raised in foster care for two months, which is how long it takes Social Services to conduct their investigation. And then, at the trial, Judge Neely decides to declare the kids wards of the state based exclusively on the conduct with David described above.

Let me be crystal clear. Everything in the social services report about the parents is exactly what you'd expect to see from a normal, loving family. Stable home. Dad loves the kids. Mom loves the kids. Precisely the same stuff you'd presumably read if Social Services investigated your family. But Social Services still files to keep the kids in foster care. And Judge Neely lets 'em. Based entirely on the conduct of Mom and Dad with respect to David that night.

Absurd. And Justice McDonald explains exactly why. They didn't know that David was a molester. They don't have ESP. You don't get your kids taken away from you just because someone else molests your kids. (Like a contrary rule would be good for anyone, including the kids.) When they did know that he was a child molester, they did precisely what we'd want anyone to do. Call the cops.

If I have any problem with Justice McDonald's opinion, it's that it's not strong enough. It's an outrage to take a parent's children away -- for any amount of time, much less potentially permanently -- based upon the type of conduct that transpired here. Maybe what happened with Mom and Dad here couldn't exactly happen to any of us. But assuredly something like it could. If the type of erroneous judgment displayed here counts as child abuse sufficient to have your kids taken away, then no one's kids are safe. Nor is any family.

P.S. - This may be another case that randomly hits close to home for me, if only because it not only transpired in San Diego, but because one of the kids taken away is -- like my own daughter -- named "Sierra". Also, I tried to find out more about "Judge Neely". The only reference that I could find was something listing him as a pro tem referee in Department 10 of the Juvenile Dependency Division. So doesn't look like an actual judge. Turns out also that he's an old-time USD Law graduate (1964?). Who's currently inactive with the State Bar. Which sort of makes me glad. Look, I'm all in favor of judges who are looking out for kids. I totally am. But there's also going way, way too far. Which is my definite sense of what happened here. You can't take kids away from their parents -- or vice-versa -- for stuff like this. You just can't.